R. v. Martin (G.W.), (2015) 438 N.B.R.(2d) 17 (CA)

• Judge: Richard, Bell and Green, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: September 09, 2014
• Jurisdiction: New Brunswick
• Citations: (2015), 438 N.B.R.(2d) 17 (CA);2015 NBCA 40

R. v. Martin (G.W.) (2015), 438 N.B.R.(2d) 17 (CA);

    438 R.N.-B.(2e) 17; 1141 A.P.R. 17

MLB headnote and full text

Sommaire et texte intégral

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2015] N.B.R.(2d) TBEd. JL.004

Renvoi temp.: [2015] N.B.R.(2d) TBEd. JL.004

George W. Martin (appellant) v. Her Majesty the Queen (respondent)

(64-13-CA; 2015 NBCA 40)

Indexed As: R. v. Martin (G.W.)

Répertorié: R. v. Martin (G.W.)

New Brunswick Court of Appeal

Richard, Bell and Green, JJ.A.

July 2, 2015.

Summary:

Résumé:

The accused was convicted by a jury of obstruction of justice. Some days after the verdict and discharge of the jury, the accused and his counsel were advised that while the jury was in deliberations one of the jurors was permitted to leave the jury room and the courthouse building, where he was alleged to have made telephone calls on his cell phone. It was also alleged that some members of the jury remained in the jury room while others were outside during this same period. The accused brought a motion requesting that the court conduct an inquiry into the events to determine whether there had been a miscarriage of justice, and if so, that it declare a mistrial on the grounds that the accused was denied the right to a fair and impartial trial.

The New Brunswick Court of Queen's Bench, Trial Division, in a decision reported at (2013), 409 N.B.R.(2d) 45; 1062 A.P.R. 45, dismissed the accused's motion for a mistrial where it lacked jurisdiction. The court proceeded with an inquiry into both aspects of the alleged juror conduct that would not offend the jury secrecy rule. The accused appealed from the conviction. The evidence from the inquiry formed part of the record for consideration on the appeal.

The New Brunswick Court of Appeal allowed the appeal, ordering a new trial.

Criminal Law - Topic 4306

Procedure - Jury - Communications with jury (incl. notes from jury) - [See Criminal Law - Topic 5045 ].

Criminal Law - Topic 4324.1

Procedure - Jury - General - Sequestering of jury - [See Criminal Law - Topic 5045 ].

Criminal Law - Topic 4852

Appeals - Indictable offences - Grounds of appeal - Miscarriage of justice - [See Criminal Law - Topic 4976 ].

Criminal Law - Topic 4963

Appeals - Indictable offences - New trials - Grounds - Lack of appearance of justice - [See Criminal Law - Topic 5045 ].

Criminal Law - Topic 4976

Appeals - Indictable offences - Powers of Court of Appeal - Appeal from a conviction - The New Brunswick Court of Appeal discussed the powers of an appellate court in an appeal against a conviction under s. 686 of the Criminal Code - The power to dismiss an appeal despite certain errors, including errors of law, did not exist where there was a procedural error or irregularity that did not amount to an error of law - In that case, the court had to assess the appeal under s. 686(1)(a)(iii) to determine whether a miscarriage of justice had occurred - If there had been a miscarriage of justice, no remedial provision could cure such an error or irregularity - The appeal had to be allowed and either an acquittal entered or a new trial ordered - See paragraph 30.

Criminal Law - Topic 4989

Appeals - Indictable offences - Powers of Court of Appeal - Power to allow appeal where miscarriage of justice - [See Criminal Law - Topic 4976 ].

Criminal Law - Topic 5038

Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - Procedural error - [See Criminal Law - Topic 4976 ].

Criminal Law - Topic 5045

Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - What constitutes a substantial wrong or miscarriage of justice - The accused was convicted by a jury of obstruction of justice - After the verdict and discharge of the jury, a civilian witness advised the accused of certain procedural irregularities that had allegedly occurred during the jury's deliberations - The trial judge denied the accused's motion for a mistrial, but conducted an inquiry into the alleged juror conduct - The inquiry established that juror 3 made at least one phone call after the jury was sequestered while accompanied by a sheriff's officer; the trial judge had not been informed of juror 3's request to contact a third party; and, at one point without the judge's permission, the jury was split into three different groups - The accused appealed from the conviction under s. 686(1)(a)(iii) of the Criminal Code, asserting that he had suffered a miscarriage of justice due to the procedural irregularities that had been permitted to occur - The New Brunswick Court of Appeal allowed the appeal, ordering a new trial - There was an undeniable appearance of unfairness - Of particular concern was the unauthorized phone call, the presence of unsworn sheriff's officers or "helpers" in the jury room and the unauthorized separation of the jury - Although there was no evidence of actual prejudice to the accused, the conviction could not be allowed to stand - See paragraphs 29 to 43.

Cases Noticed:

R. v. Nasogaluak (L.M.), [2010] 1 S.C.R. 206; 398 N.R. 107; 474 A.R. 88; 479 W.A.C. 88; 2010 SCC 6, refd to. [para. 28].

R. v. Khan (M.A.), [2001] 3 S.C.R. 823; 279 N.R. 79; 160 Man.R.(2d) 161; 262 W.A.C. 161; 2001 SCC 86, refd to. [para. 30].

R. v. Spiers (C.A.) (2012), 299 O.A.C. 47; 2012 ONCA 798, appld. [para. 32].

R. v. Davey (T.G.), [2012] 3 S.C.R. 828; 437 N.R. 250; 297 O.A.C. 151; 2012 SCC 75, refd to. [para. 33].

R. v. Cameron (1991), 44 O.A.C. 278 (C.A.), refd to. [para. 34].

R. v. Horne (1987), 78 A.R. 144 (C.A.), refd to. [para. 37].

R. v. Masuda (1953), 106 C.C.C. 122 (B.C.C.A.), refd to. [para. 39].

R. v. Nash, [1949] N.B.J. No. 7 (C.A.), refd to. [para. 40].

R. v. Arsenault, [1956] N.B.J. No. 3 (C.A.), refd to. [para. 41].

R. v. Gilson (1965), 4 C.C.C. 61 (Ont. C.A.), refd to. [para. 41].

R. v. Labelle (1981), 63 C.C.C.(2d) 403 (Ont. C.A.), refd to. [para. 41].

R. v. Head, [1986] 2 S.C.R. 684; 70 N.R. 364, refd to. [para. 45].

R. v. Burke (H.P.), [2002] 2 S.C.R. 857; 290 N.R. 71; 160 O.A.C. 271; 2002 SCC 55, refd to. [para. 45].

Counsel:

Avocats:

Daniel R. Jardine, for the appellant;

Kathryn Gregory, for the respondent.

This appeal was heard on September 9, 2014, and February 12, 2015, by Richard, Bell and Green, JJ.A., of the New Brunswick Court of Appeal. Bell, J.A., did not participate in the second part of the hearing or in the decision of the court. On July 2, 2015, Richard, J.A., delivered the following judgment in both official languages for the court.